Wrongful Termination

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Introduction

Wrongful termination is the situation where employees are relieved of their jobs for unlawful reasons or the process where employers violate the policies of an organization by firing a worker (Van Zyl, pp44). Most of the jobs offered involve employment at will type of relationship where there is no bargaining agreement, and a worker willingly accepts a job. In such instances, the employer does not require any reason to terminate the position. The purpose of the paper is to describe constructive discharge, as well as the factors courts, should consider in a constructive discharge. Additionally, it explains the difference between pure employment at will and employment at will with exceptions. Moreover, the paper discusses the Montana wrongful discharge, and three necessary actions firms should consider when practising legal termination of workers.

Constructive discharge

Constructive discharge is when a worker is forced to leave their job as a result of actions of the employer; for example, an employer might make the conditions of working harsh or unbearable (Thomson, np). Unbearable working conditions could include factors like harassment or discrimination, getting a negative pay change, mistreatment as well as doing chores not related to your job description. A boss who tries to make their workers resign from work by harassing them or inflicting unbearable conditions on them is said to attempt a constructive discharge. In this form of termination, the resignation of the employee is unnoticed due to legal purposes since the working relationship was in effect ended involuntarily by the behavior of the employer (Van Zyl, pp44). Therefore, the departure is considered or treated as firing in such a situation. Besides, the worker has a chance to file a claim for wrongful constructive dismissal if at all the actions of his or her boss were unlawful or constitute a breach of an implied employment agreement.

The court needs to focus on various factors in determining the existence of a claim of constructive discharge. These factors include:

Ø  If the worker was asked or required to engage in unlawful activity (Thomson, np)

• Whether the employer suitably investigated or acknowledged the complaints of the employee.
• The nature of illegal conduct by the employer (Thomson, np).
• The time passage between the purportedly illegal activity and the resignation of the worker.

Organizations can proactively avoid claims of constructive discharge by considering the following factors:

• A firm should be sure to maintain a respectful working environment free from hostility, bullying, and harassment (Van Zyl, pp44).
• All changes concerning the employee should be for honest and acceptable reasons.
• Ensure effective communication with employees before making crucial changes.
• If an employer gives a worker a different position, they need to ensure the compensations and responsibilities match or are better than the prior post (Van Zyl, pp44).
• Ensure all changes are kept in writing and the agreement signed by the employee.
• The work contract should involve terms that allow for a change in certain essential working conditions.

Pure Employment At Will And Employment At Will With Exceptions

Pure employment at will is the type of employment that does not consider the aspect of wrongful termination. A worker employed without signing any contract for a certain period can be dismissed at any time for beneficial reasons, wrong reasons, or sometimes for no reason at all (Oliver, np). Therefore, a person can not file a complaint of unfair dismissal in this arrangement if no agreement was reached or signed. However, contrary to pure employment at will, most workers in private sectors or those not in unions have their job relationships protected by the statutory regime referred to as employment at will with exceptions. In this type of system, employers have the responsibility to prove that their dismissal actions resulted from illegal conduct unacceptable by the law. Failure of the employers to do so, the employment at rule remains the default rule used which states that termination is lawful regardless of the nature of dismissal or the circumstances surrounding it.

From my perspective, employment at will is unfair. This idea is due to the reason that most employers could use employment at will type of regime to take advantage of employees. In most cases, people accept jobs without signing a contract due to the difficulty in getting decent jobs today. Whenever an individual is offered a job, they would not dare ask their employers of an agreement to sign in fear of being rejected. Therefore, they have to persevere even if they receive low pay and are mistreated. An alternative rule would be the just cause (Oliver, np). This rule would allow consideration of actions of both the employer and employee. Whoever is found to engage in illegal conduct would face fair judgment.

Montana Wrongful Discharge

The Montana Wrongful Discharge is an Act ratified by the State of Montana in the year 1987 (Hodges, np). The Wrongful Discharge from Employment Act statutorily adjusts the rule of employment at will. This law does not neglect the aspect of work at will but instead introduces the legal basis for conduct for wrongful dismissal (Hodges, np). The Act puts it clear that a discharge is considered illegal or unlawful if it involves the refusal of a worker to engage in public policy violation or for reporting whenever a breach of public policy has occurred. A dismissal should be for a good cause, and if not yet a worker has finished the period of probation as required by the employer, it will be termed as wrongful discharge. Additionally, the Act states that dismissal is wrongful if the manager breaches the express provisions of the written personnel policy of this act.

Benefits

This act is significant in restricting the damages encountered by employees who are wrongfully dismissed for backing pay and gains. Besides, it prohibits explicitly awards for suffering and pain, compensatory, punitive, emotional distress, as well as any other type of damage. However, disciplinary damages are acceptable in instances where there is actual fraud or malice that concerns the violation of public policy enclosed by the Act (Hodges, np). The law offers incentives as well for using other options to court activities like arbitration and grievance procedures.

If an employer is accused of wrongful discharge of a worker, the employee is eligible for awards of lost wages and fringe gains for a certain period specifically not more than four years from the dismissal date, in addition to interest (Hodges, np). Provisional earnings such as the amount the employee would have received with reasonable diligence, are deducted from the awarded lost wages amount.

The act is useful in helping employees receive just treatment regarding discharge from work. The adjustment made focuses on the reasons for dismissal by basing on the conduct of both the employer and the employee (Hodges, np). If illegal release is found then the worker is eligible for compensation.

Actions to consider for legal termination

As organizations seek to handle the termination of workers lawfully, they need to consider several measures including:

Employers’ Rights

Organizations should be keen on the type of employment rules they use. If the employment of a worker is not based on a signed agreement, it is under “at- will”law and the employer can freely dismiss the employee whenever he or she feels like without a valid reason (Oliver, np). Similarly, the worker is free to resign from work at any time for any reason available. Nonetheless, the situation is different if a contract was signed since the terms of the agreement must apply. A deal put in writing specifies the reasons for termination of an employee whereas a verbal contract requires that dismissal only happens for a cause. This statement means that an employer can discharge a worker due to the negligence of duty, a dishonest act, poor performance at work, or because the position held by the employee needs to be eliminated.

Beware Of Constructive Dismissal

Constructive dismissal happens when workers complain that the working conditions were unbearable; hence they had to leave work. Therefore employers should maintain or operate in accordance to the federal employment laws to avoid giving their employees reasons to claim for constructive discharge (Oliver, np). Besides, employers need to understand the factors considered by the courts concerning constructive discharge as well as the conducts that could provoke the claims. Understanding these facts will help companies be on the safe side.

Termination Meeting

It is essential for employers to choose firing words carefully during termination meetings to avoid provoking or harassing the employees (Oliver, np). After going through all the necessary checks and finding reasons to fire a person, the employer meets the worker to inform them about their decision. Nevertheless, how the employer presents the information is crucial, and they need to follow the lawful business etiquette not messing with the worker’s dignity. Embarrassing dismissal could lead to a return with a lawsuit. Dismissal words should be encouraging and friendly not showing any signs of hatred.

Conducting exit interviews

According to most employers, holding exit interviews with workers who are dismissed is of no importance and a waste of time. They believe that once a former employee is gone regardless of whether they are mad or happy, they have no benefit to the organization. However, people need to understand exit interviews with resigned or fired workers are crucial and valuable. Information obtained from the views of the ex-employee during an exit interview could be beneficial to the firm. The employer can identify areas of concern and devise necessary strategies to better the working conditions. Therefore, companies should consider exit interviews as critical actions in helping to practice fair dismissal of employees.

Conclusion

Wrongful termination is when employers fire their employees in illegal ways or for unlawful reasons. Constructive discharge, on the other hand, involves the situation where employers make working conditions unbearable for employees to resign. There are factors to be considered by the court before deciding whether a dismissal is unlawful. Employment could be under the rule of pure employment at will or employment at will with exceptions. The Wrongful Discharge from Employment Act enacted Montana State is an adjustment of the employment at will. This act is significant and helps workers achieve honorable discharge. Organizations should consider actions like exit interviews, proper words during termination meetings, and awareness of employer’s rights and constructive dismissal to ensure they to conduct appropriate discharge of workers.

Works cited

Hodges, Ann C. “Principles of employment law.” (2018).

Oliver, Liz. “Constructive dismissal.” Encyclopedia of Human Resource Management. Edward Elgar Publishing Limited, 2016.    

Thomson, Reuters. Find Law: Constructive Dismissal and Wrongful Termination.(2019)

Van Zyl, Brian. “Constructive dismissal: legal-just in case.” HR Future 2.Feb 2016 (2016): 42-45.